About this case:

• Citation:
  [2024] IEHC 47
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Barniville

Delivering judgment for the High Court, Mr Justice David Barniville determined that “confining the scope of the s. 108 review to wards suffering from a ‘mental disorder’ would be to put the cart before the horse, and to introduce a precondition to the obligation imposed on the court by s. 108(1), which I do not believe would be justified by either the clear wording of the subsection or by any of the other matters relevant to its construction”.

Background

M.C., a lady in her late 60s, suffered a brain injury and a stroke and was a ward of court at the time that the Assisted Decision-Making (Capacity) Act 2015 (ADMCA) came into force on 26 April 2023. M.C. was the subject of a detention order in a nursing home in Co Dublin, which was not an “approved centre” under s.2 of the Mental Health Act 2001.

Both the wardship and the detention order were reviewed and continued by the High Court in the exercise of its wardship jurisdiction from 2022–2023. A further review was fixed for 3 October 2023.

In K.K. (No.1) [2023] IEHC 306, a judgment delivered in June 2023, Ms Justice Niamh Hyland determined that following the commencement of the 2015 Act, the court no longer had jurisdiction in wardship under s.9 of the Courts (Supplemental Provisions) Act 1961 to make an order detaining a ward where they were not subject to a detention order at the time that the 2015 Act came into force.

The HSE contended that the court was not obliged to conduct a review of the order detaining the M.C. in her placement under s.108 of the 2015 Act and instead should have exercised its wardship jurisdiction pursuant to s.9 of the Courts (Supplemental Provisions) Act 1961, as she was not suffering from a “mental disorder” within the meaning of s.3 of the 2001 Act at the time that the 2015 Act came into force, and did not have a consultant psychiatrist responsible for her care for the purposes of s.108(5) of the 2015 Act.

The independent solicitor and guardian ad litem of M.C. disagreed, asserting that as M.C. was and continued to be the subject of a detention order at the time s.108 came into force, the court was obliged to conduct the review under s.108 regardless of M.C. not having a mental disorder or having a consultant psychiatrist with responsibility for her.

The High Court

Having set out the relevant statutory provisions, Mr Justice Barniville noted that s.108(1) of the 2015 Act requires reviews of detention orders in respect of persons detained in institutions other than “approved centres” on the order of the wardship court as of 26 April 2023, and who continue to be so detained.

The court considered s.108(2) of the 2015 Act, noting that the “critical issue” in deciding whether it could continue the detention of a ward in their current placement or in another place was whether the court was satisfied that the ward is suffering from a mental disorder. If the ward was suffering from a mental disorder, the court could direct the detention to continue.

Finding that M.C. was not and never had suffered from a mental disorder, the court observed that s.108(5) required it to hear evidence from a consultant psychiatrist responsible for the ward’s care and treatment and from an independent consultant psychiatrist selected by the court.

The court disagreed with the HSE’s contention that it could not carry out a s.108 review or that it should “discharge the review” where the ward did not have a “mental disorder” or a consultant psychiatrist responsible for her care or treatment and could not comply with Practice Direction HC 121 of 11 May 2023 which provides procedures for bringing applications under s.107 and s.108. The court stated that it could depart from Practice Direction HC 121 “for whatever reason, compliance is not possible and where it is otherwise necessary and appropriate to proceed with the review”.

The independent solicitor agreed that the detention should continue, but asserted inter alia that the obligation to carry out a review arises on the basis that the ward is, and was at the commencement of s.108, detained in a non-approved centre on foot of an order made by a wardship court, and that the obligation did not arise on the basis that the ward has a mental disorder or a responsible psychiatrist. The independent solicitor also submitted that to interpret s.108 as not requiring a review in the case of a detained ward without a responsible psychiatrist, would “hollow-out” an important safeguard in that section.

Mr Justice Barniville determined that s.108(1) of the 2015 Act obliged him to review M.C.’s detention order, irrespective of her having neither a mental disorder nor a consultant psychiatrist responsible for her care or treatment, noting: “The obligation to do so arises from the clear wording of s. 108(1), when construed in accordance with the guiding principles of statutory interpretation discussed recently by the Supreme Court in Heather Hill and in A, B and C.”

The court highlighted:

In light of the fact that most wards detained in non-approved centres are not suffering from, and may have never suffered from, a “mental disorder”, the court could not accept that “the absence of a responsible consultant psychiatrist absolves the court of its obligation to review the detention of the relevant ward or compels the court to take the view that it cannot carry out the review. To conclude otherwise would… be a classic case of the tail wagging the dog.”

Having reviewed M.C.’s detention under s.108 and having concluded that she was not suffering from a mental disorder, the court considered that it could not continue M.C.’s detention in accordance with s.108(2) nor could it discharge the ward from detention in accordance with s.108(4) as she is not a person who is “no longer suffering from a mental disorder”.

Noting the parties’ agreement that the court had jurisdiction to continue M.C.’s detention under its wardship jurisdiction under s.9 of the 1961 Act as preserved by s.56(2) of the 2015 Act, Mr Justice Barniville agreed that this was the correct position, and that nothing in K.K. (No.1) precluded the court from continuing the detention order.

Conclusion

Accordingly, the court continued M.C.’s detention order and suggested a further review within three months of the delivery of its judgment.

Health Service Executive v M.C. [2024] IEHC 47